Barry-Wehmiller Machinery Co. v. Thompson

104 S.W. 137, 83 Ark. 283, 1907 Ark. LEXIS 98

• Court: Supreme Court of Arkansas
• Decided: May 20, 1907
• Status: Published

Opinions

McCuruoch, J.

This is an action instituted by appellant ■before a justice of the peace against appellee to recover the sum of $62.44 on account for the price of a pulley and belt which, it is alleged, had been sold and delivered on March 3, 1904. The defendant answered, denying said indebtedness and alleging that plaintiff had furnished said articles pursuant to the terms of a contract previously entered into between the parties whereby the plaintiff agreed to furnish ¡to defendant certain elevator machinery, including all necessary belts and pulleys, for the sum and price of $1,500, which the defendant had paid in full.

■ The defendant also filed a counterclaim against the plaintiff for damages alleged to have been sustained by reason of' a ¡breach of plaintiff’s guaranty of the machinery furnished by it under said contract; and also for the value of certain articles of machinery which, it is alleged, the plaintiff failed to furnish as required by the contract. The case was carried by appeal to the circuit court, where a trial before a jury resulted in a verdict and judgment -in favor of ¡the defendant for the sum of $201, and the plaintiff appealed to this court.

The defendant introduced in evidence the contract whereby the plaintiff agreed to furnish to defendant, for the price of $1,500, -the machinery and supplies for an elevator to be built at Shreveport, Louisiana. The contract contained the following clause:

“In addition to the above the party of the first part proposes to furnish to the party of the second part all necessary ¡elevator bolts, belts, pulleys and shafting, not mentioned herein, to put into running operation the elevators and machinery described above. This clause is added from the fact that some of the articles mentioned may not be enough to do what is intended.”

The testimony was conflicting as to whether or not the belt and pulley fell within the terms of the original contract. The defendant testified that these articles were essential to the operation of the elevator, and therefore fell within the terms of the contract; but a witness introduced by plaintiff testified that the articles were not within the terms of the contract, and were sold and delivered to defendant at his special request several months after the elevator was installed and put into operation.

We are unable to determine, with any degree of certainty, whether the jury found in favor of or adversely to the plaintiff on the account, as the verdict is a general one for $201 in favor of the defendant, ¡and it does not appear whether or not the jury allowed the amount and deducted it from the amount of damages assessed. The correctness of the verdict must therefore depend upon the question whether it was proper- to submit the counterclaim of defendant to the jury.

The action instituted by the plaintiff was not,-it will be seen, upon the original contract entered into on December 7, 1903, for the elevator machinery and supplies. The plaintiff denies any obligation on its part to furnish the belt and pulley under the contract, and claimed that the sale and delivery of those artides was the subject of a subsequent independent contract.

The statute provides that a counterclaim “must be a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transactions set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action.” Kirby’s Digest, § 6098.

The statute is so plain that it needs no elucidation, and has frequently .been applied by this court according to the obvious intent of the lawmakers. Pilsbury v. McNally, 22 Ark. 409; Bloom v. Lehman, 27 Ark. 489; White v. Reagan, 32 Ark. 282; Hudson v. Snipes, 40 Ark. 75; Chandler v. Lazarus, 55 Ark. 312; Matthews v. Weiler, 57 Ark. 606; Hays v. McLain, 66 Ark. 400. The right of a defendant to counterclaim must be tested by the nature of the cause of action set forth in the complaint of the plaintiff. He can not place his own construction upon the plaintiff’s cause of action, which is not warranted by the allegations of the complaint, so as to open up a way for his counterclaim.

The plaintiff sues upon an account for articles alleged to ■have been sold and delivered on March 3, 1904, and the defendant seeks to counterclaim by reason of damages resulting from an alleged failure of plaintiff to perform a contract executed on December 7, 1903, concerning the sale of elevator machinery. The contracts and transactions were, according to the plaintiff’s contention, separate and distinct from each other, and a liability resulting from one can not be made the subject-matter of a counterclaim. This does not mean, however, that the defendant can not, regardless of the plaintiff’s contention, show by way of defense against the claim set forth in the complaint that the articles mentioned were not the subject of a separate contract or transaction, but were embraced in the terms of the original contract; nor that the defendant may not set off, against the plaintiff’s account, a claim arising out of another contract between them.

Reversed and remanded.